United States v. Zapata-Reyes ( 2023 )

Case: 22-50887 Document: 00516743647 Page: 1 Date Filed: 05/09/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50887
Summary Calendar FILED
____________ May 9, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Andres Zapata-Reyes,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-289-1
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Andres Zapata-Reyes appeals the sentence imposed after his guilty
plea conviction for illegal reentry subsequent to removal, pursuant to
8 U.S.C. § 1326(a) and (b)(2). Zapata-Reyes contends, for the first time on
appeal, that it violates the Constitution to treat a prior conviction that
increases the statutory maximum under § 1326(b) as a sentencing factor,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50887 Document: 00516743647 Page: 2 Date Filed: 05/09/2023
No. 22-50887
rather than as an element of the offense. Zapata-Reyes concedes that this
issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998), but he seeks to preserve the issue for future review. In addition, he
has filed an unopposed motion for summary disposition.
The sole issue raised on appeal is foreclosed by Almendarez-Torres.
See United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019); United States
v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Because Zapata-Reyes’
contention is clearly incorrect “as a matter of law [and] there can be no
substantial question as to the outcome of the case,” summary disposition is
proper. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, Zapata-Reyes’s motion is GRANTED, and the judgment of
the district court is AFFIRMED.
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